Child Custody

Who Gets the Child’s Custody? Child Custody Laws in India

LegalKart Editor
LegalKart Editor 03 min read 51778 Views
Last Updated: Oct 31, 2023
Child Custody Laws in India - Father or Mother Who Gets the Custody?

Even thinking about the torment that goes through a couple's heads as their marriage disintegrates is enough to give me the chills. However, the misery that their child goes through as a result of this process causes us an even greater amount of anguish. Yes, you did read that correctly; what we are referring to is the agonising process of seeking a divorce from your husband and the subsequent fight to gain custody of your child once the divorce has been finalised (ren). The entire process of divorce is unpleasant, but determining who will have custody of the children is much more unpleasant. In spite of the fact that an amicable conclusion is theoretically possible, it is extremely unlikely given that the relationship between the two adults has already been antagonistic as a result of intractable disagreements and, in some cases, inflated egos.

Also Read: Know About Mutual Consent Divorce After Six Months Of Marriage

This makes us think about the first thing divorced parents might wonder: who gets custody of the child after the parents split up? Each parent might want to get custody of the child for different reasons after a divorce. We could think of things like the division of parental property, financial support for the child's education, good upbringing, safety and maintenance, visitation rights, alimony, the child's comfort, the right to make decisions about the child's life, etc. They would hire the best child custody attorney to win custody and keep the other parent from getting it. But according to Indian child custody law, even after a divorce, both parents have equal rights over the child. When a child is younger than 18, "custody" just means with which parent the child will physically live. Even if one parent gets custody, that doesn't mean the other parent stops being the child's parent and loses all rights over the child. The law about child custody makes it clear that even though their marriage was cancelled, they are still the natural guardians of the child. In other words, the parent with custody takes care of the child most of the time, while the parent without custody still has the right to see the child. 

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In most cases in India, the family court gives custody of the child to one parent and gives both parents access to the child. Learn how to win child custody for mothers in India. Data shows that only two fathers have been given custody of their children out of about 90 cases in a given year. So, what does this mean? Do mothers have more power in India when it comes to deciding who gets to keep a child? Even though the data show that mothers are better, this is not the case. Fathers often think that they can get custody of their children once they reach a certain age. But this is just a myth, something that many people continue to believe.

In a number of important decisions, the courts have shown that they care more about the best interests of the child and the "right of the child" than the "right of the parent" when deciding which parent gets custody after a divorce. There may be exceptions or special situations, though, that courts look at on a case-by-case basis. For example, a) if a child is younger than 5 years old, custody is usually given to the mother, b) older boys are usually given to the father and older girls are usually given to the mother, and c) courts also look at what the child who is older than 9 years old wants.

Types of Child Custody

It brings us to a point where it becomes imperative to throw light on the types of child custody in divorce. It can be one of the following kinds:

  • Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
  • Joint Custody – where child lives with both parents on rotational basis and duration of child’s stay may vary from several days to weeks to months based on mutual agreement between the separated parents.
  • Sole Custody – where the child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.
  • Third Party Custody – where a guardian or third person gets the custody of the child from court instead of the biological parents. This is also often termed as non-parental custody.

Those who read this Article also Consulted a Lawyer about Child Custody process in India.  

Child Custody Laws In India

We must also know a little bit about the laws that apply. In India, the Guardian and Wards Act 1890 has provisions related to child custody after divorce. At the same time, India is a big country with many different religions, and there are laws to deal with divorce and who gets to keep the kids. The Indian Constitution has laws that depend on what religion we belong to. These laws are:

  • Custody under Hindu Law – which has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.
  • Custody under Muslim Law – which allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Custody under Christian Law – which allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.
  • Custody under Parsi Law – which allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

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Already, it's a nightmare for parents who have to go through a separation. Problems are made worse by the fact that it is hard for them to get custody of child (ren). No one would want to lose this battle. Imagine that you are looking for information about how decisions are made and orders are made when it comes to child custody after a divorce. The best way is to contact a child custody lawyer who not only can guide you in the process but sail you through with bare minimum stress. 

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